M. K. Ramaswamy v. A. Krishna Menon — 1993 DIGILAW 864 (MAD)

Judgment :- C.R.P.No.3283 of 1987 is directed against the order passed in R.C. A.No.95 of 1985 which in turn arose out of the order passed in R.C.O.P.No.9 of 1981. C.R.P.No.3284 of 1987 is directed against the order passed in R.C.A.No.96 of 1985 which in turn arose out of the order passed in R.C.O.P.No.7 of 1981. The tenants are the petitioners herein. The landlord filed petitions for eviction against both the tenants under Sec.l0(2)(i) and Sec.l4(l)(b) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 as amended by Act 23 of 1971 hereinafter referred to as the Act. According to the landlord, the tenant in C.R.P.No.3283 of 1987 committed wilful default in payment of rent upto 312. 1980 for a period of 11 months at the rate of Rs.85 per mensem amounting to Rs.1,020 and therefore he is liable to be evicted under Sec.l0(2)(i) of the Act. So also the tenant in C.R.P.No.3284 of 1987 committed wilful default in payment of rent upto 312. 1980 for a period of 11 months at the rate of Rs.55 per mensem amounting to Rs.660. Therefore, he is also liable to be evicted under Sec.l0(2)(i) of the Act. According to the landlord the tenants filed petitions under Sec.8(5) of the Act to deposit the rent in court. The Rent Control court directed the tenants to deposit the rent in court. Inspite of the said order passed by the Rent Controller, the tenants failed and neglected to deposit the rent for the period of the abovesaid 11 months. Hence, according to the landlord, they have committed wilful default in payment of rent. The landlord also sent a notice on 111. 1980 with regard to the tenant relating to C.R.P.No.3283 of 1987. The tenant sent a reply on 111. 1980. The tenant also sent a further reply on 27.,11.1980. Along with the said reply, the tenant sent a cheque for Rs.1,020. But the landlord refused to receive the same. According to the landlord since the tenant failed to deposit the rent as directed by the court for a period of 11 months, he is liable to be evicted under Sec.l0(2) (i) of the Act. In the case of tenant in C.R.P.No.3284 of 1987 is concerned, the landlord sent a notice on 111. 1980 and the tenant sent a reply on 111. 1980 and along with the reply, the tenant sent a cheque for Rs.550. In the case of tenant in C.R.P.No.3284 of 1987 is concerned, the landlord sent a notice on 111. 1980 and the tenant sent a reply on 111. 1980 and along with the reply, the tenant sent a cheque for Rs.550. The landlord refused to receive the same. According to the landlord, inasmuch as the tenant failed to deposit the rent as per the earlier direction of the Rent Controller, he committed wilful default in payment of rent and thereby rendering himself liable to be evicted under Sec.l0(2)(i) of the Act. The landlord also required the petition premises bona fide for demolition and reconstruction under Sec.l4(l)(b) of the Act. Since according to the landlord, the building is in a dilapidated condition. According to the landlord, he is having sufficient means to demolish the existing building and to put up a new superstructure. The landlord also obtained a sanctioned plan from Municipality for demolition and reconstruction. Therefore, according to the landlord, the requirement of the petition premises under Sec.l4(l)(b) of the Act is bona fide. 2. The tenants filed counters stating that they have sent the arrears of rent by way of cheques along with their reply notices within the time stipulated in the notices sent to them. Therefore, they have not committed any wilful default in payment of rent as alleged by the landlord. According to the tenants, they were directed to deposit the rent in court by the Rent Controller as per the order passed under Sec.8(5) of the Act. They are entrusting the rent to their advocates but their advocates failed to deposit the same in court. Hence, it was submitted that there is no wilful default in payment of rent as alleged by the landlord. The tenants further submitted that the landlord failed to establish the condition of the building. The landlord also failed to show that he is having any means to put up the new superstructure. The building is not an old one as submitted by the landlord. It was therefore submitted that the requirement of the petition premises under Sec.l4(l)(b) of the Act is not bona fide. The landlord filed 30 documents. The tenants filed 66 documents. Considering the facts arising in this case, the Rent Controller came to the conclusion that the tenant committed wilful default in payment of rent for the petitioner period. It was therefore submitted that the requirement of the petition premises under Sec.l4(l)(b) of the Act is not bona fide. The landlord filed 30 documents. The tenants filed 66 documents. Considering the facts arising in this case, the Rent Controller came to the conclusion that the tenant committed wilful default in payment of rent for the petitioner period. So also the Rent Controller came to the conclusion that the landlord established his bona fide in requiring the petition premises under Sec.l4(l)(b) of the Act. Accordingly, eviction was ordered on both these grounds. However, on appeal appraising the facts arising in this case, the Rent Control Appellate Authority reversed the order passed by the Rent Controller on both these grounds and dismissed the petitions for eviction filed by the landlord. It is against that common order, the landlord is in revision before this Court. 3. The learned counsel appearing for the petitioner-landlord submitted as under: The tenants filed petitions under Sec.3(5) of the Act to deposit the rent in court. The Rent Controller directed the tenant to deposit the rent into court. Inspite of such direction, the tenants failed and neglected to deposit the rent in court for a period of 11 months. Hence, the landlord sent notices to the tenants calling upon them to pay the arrears of rent and also requesting them to quit and deliver vacant possession. According to the landlord, the notices issued by the landlord are not the notices issued under Explanation to Sec.l0(2)(i) of the Act. In other words, the learned counsel submitted that they are not two months notices as contemplated under Explanation to Sec.l0(2)(i) of the Act. Therefore, even though the tenants sent the cheques for the arrears of rent within 15 days from the date of receipt of the notices, still they are liable to be evicted under Sec.l0(2)(l) of the Act, since the default committed by them is wilful default as contemplated under the abovesaid provisions. The learned counsel further submitted that if the Advocates of the tenants are not depositing the rent in court, it cannot be a ground to say that they did not commit wilful default in payment of rent as contemplated under Sec.l0(2)(i) of the Act. The learned counsel further submitted that if the Advocates of the tenants are not depositing the rent in court, it cannot be a ground to say that they did not commit wilful default in payment of rent as contemplated under Sec.l0(2)(i) of the Act. The learned counsel further submitted that the decision reported in S.Sundaram v. V.R.Pattabhiraman, A.I.R. 1985 S.C. 582, would support the plea put forward by the learned counsel appearing for the tenant, viz. that even though the tenants tendered the arrears of rent within 15 days after the receipt of the notice sent by the landlord, that would not absolve them from the rigor of Sec.10(2)(i) of the Act. According to the learned counsel, when the tenants failed to deposit the rent in court as per the earlier direction, that would be deemed to have committed wilful default in payment of rent as per the provision of Sec.l0(2)(i) of the Act. According to the learned counsel, notices issued by the landlord should not be considered as two months notice as contemplated under Explanation to Sec.l0(2)(l) of the Act. For all the reasons, it was submitted that the Rent Control Appellate Authority was not correct in reversing the well considered order of eviction passed by the Rent Controller. 4. On the other hand, the learned counsel appearing for the respondent-tenants submitted as under: It is no doubt true that the tenants filed petitions under Sec.8(5) of the Act for depositing the rent in court. Direction was given by the Rent Controller to deposit the rent in court. According to the tenants, they entrusted the money to their counsel for depositing the same in court and their counsel failed to deposit the same. Therefore, they should not be penalised for the mistake committed by their counsel. It was further submitted that soon after they received the notices from their landlord, they sent the arrears of rent as claimed in the notices within 15 days from the date of receipt of the said notices. Therefore, according to them, they did not commit any wilful default in payment of rent as contemplated under Sec.l0(2)(i) of the Act. It was further submitted that soon after they received the notices from their landlord, they sent the arrears of rent as claimed in the notices within 15 days from the date of receipt of the said notices. Therefore, according to them, they did not commit any wilful default in payment of rent as contemplated under Sec.l0(2)(i) of the Act. According to the learned counsel, if the notices issued by the landlord should not be considered as two months notices as contemplated under Explanation to Sec.10(2)(i) of the Act, then their tendering of rent by way of cheques should be taken as tendering rent before filing the petition for eviction and in such case also they are not liable to be evicted under Sec.10 (2)(i) of the Act. According to the learned counsel the decision reported in S.Sundaram v. V.R.Pattabframan, A.I.R. 1985 S.C. 582 is supporting the plea put forward by them. Therefore, according to the learned counsel if the arrears of rent was paid before filing the eviction petitions, then the tenants would escape from the rigor of Sec.l0(2)(i) of the Act. In support of their contention, they also relied upon certain other decisions rendered by this Court. I have heard the rival submissions. 5. The fact remains that the respondents herein are the tenants under the petitioners herein. The landlord filed petition for eviction under Sec.l0(2)(i) of the Act against both the tenants. According to the landlord, the tenants committed wilful default in payment of the rent for a period of 11 months. The landlord sent notices on 111. 1980 to both the tenants. Notices were marked as Exs.A-1 and A-20. The tenants sent their replies on 111. 1980 and 111. 1980 marked as Exs.A-2 and A-3. The tenant in C.R.P.No.3283 of 1987 sent a further reply Ex.A-7 on 211. 1980 and alongwith the replies, the tenants sent cheques for arrears of rent as claimed in the notices issued by the landlord. The arrears of rent was tendered within 15 days from the date of receipt of the notices by the tenants. 6. It remains to be seen that the tenants filed petitions under Sec.8(5) of the Act for depositing the rent in court. The Rent Controller directed the tenants to deposit the rent in court. Inspite of that direction, the tenants have not deposited the rent for a period of 11 months. 6. It remains to be seen that the tenants filed petitions under Sec.8(5) of the Act for depositing the rent in court. The Rent Controller directed the tenants to deposit the rent in court. Inspite of that direction, the tenants have not deposited the rent for a period of 11 months. According to the tenants, they have entrusted the money to their Advocate and their Advocate did not deposit the amount in court. It is also further submitted that the tenants entrusted the amount to their counsel so as to enable him to pay the same to the counsel for the landlord. Admittedly, this was not done by the counsel appearing for the tenants. According to the learned counsel for the petitioners, the failure of the tenants to deposit the rent in court as per the earlier direction given by the Rent Controller would amount to wilful default in payment of rent. But according to the learned counsel for the tenants, the direction given by the Rent Controller was to deposit the rent only for a particular period and thereafter, they entrusted the amount to their counsel to pay the rent directly to the counsel for the landlord. In any event, it remains to be seen that the rent for the petition period of 11 months was not paid to the landlord in the case of both the tenants. Therefore, the question now that arises for consideration in these revisions is whether the non-payment of rent for the petition period of 11 months would amount to wilful default in payment of rent as contemplated under Sec.l0(2)(i) of the Act. The landlord sent notices demanding the arrears of rent as well as demanding possession from the tenants. In the notices two months time was not given for payment of arrears of rent. But in the notices the landlord stated that the tenants should pay the arrears of rent and to quit and deliver vacant possession within 15 days from the date of receipt of the notices. According to the learned counsel appearing for the tenants, they have tendered the entire arrears of rent as claimed by the landlord in the said notices within 15 days from the date of receipt of the notices. Therefore, the tenants are not liable to be evicted under Sec.10(2)(i) of the Act. According to the learned counsel appearing for the tenants, they have tendered the entire arrears of rent as claimed by the landlord in the said notices within 15 days from the date of receipt of the notices. Therefore, the tenants are not liable to be evicted under Sec.10(2)(i) of the Act. But according to the learned counsel appearing for the landlord, the notices issued by the landlord are not the notices as contemplated under Explanation to Sec.l0(2)(i) of the Act and therefore, the tendering of rent even within 15 days after the receipt of the notices would not absolve them from the rigor of Sec.10(2)(i) of the Act. These are all the factual aspects. A similar question arose before the Supreme Court in the case of S.Sundaram v. V.R.Pattabiraman, A.I.R. 1985 S.C. 582. In similar situation, the Supreme Court while considering the Explanation of Sec.l0(2)(i) of the Act, summarised the legal position as under: "42. We need not multiply authorities after authorities on this point because the legal position seems to be clearly and manifestly well established. To sum up a proviso may serve four different purposes: 1. qualifying or excepting certain provisions from the main enactment. 2. it may entirely change the very concept of the intendment of the enactment by insisting on certain mandatory conditions to be fulfilled in order to make the enactment workable. 3. it may be so embedded in the Act itself as to become an integral part of the enactment and thus acquire the tenor and colour of the substantive enactment itself; and 4. it may be used merely to act as an optional addenda to the enactment with the sole object of explaining the real intendment of the statutory provision.“ 7. The Supreme Court also considered the situation where no notice was issued by the landlord demanding the arrears of rent. In such a situation the Supreme Court held as under: ”62.....We are unable to accept the view that whether two months notice for payment of rent is given or not, it will always be open to the controller under the proviso to determine the question of wilful default because that would render the very object to Explanation otiose and nugatory. In such a situation the Supreme Court held as under: ”62.....We are unable to accept the view that whether two months notice for payment of rent is given or not, it will always be open to the controller under the proviso to determine the question of wilful default because that would render the very object to Explanation otiose and nugatory. We express our view in the matter in the following terms: .(1) Where no notice is given by the landlord in terms of the Explanation, the Controller having regard to the four conditions spelt out by us has the undoubted discretion to examine the question as to whether or not the default commit ted by the tenant is wilful if he feels that any of the conditions mentioned by us is lacking or that the default was due to some unforeseen circumstances, he may give the tenant a chance of locsu poenitentiae by giving a reasonable time which the statute puts at 15 days and if within that time the tenant pays the rent, the application for ejectment would have to be rejected. .(2) If the landlord chooses to give two months’ notice to the tenant to clear up the dues and the tenant does not pay the dues within the stipulated time of the notice then the Controller would have no discretion to decide the question of wilful default because such a conduct of the tenant would itself be presumed to be wilful default unless he shows that he was prevented by sufficient cause or circumstances beyond his control in honouring the notice sent by the landlord.‘ 8. In the abovesaid decision the Supreme Court further held while considering similar situation as arising in the present case in the following manner: “In Civil Appeal No.1178 of 1984, it would appear that though the tenant had committed a default but he had paid the entire rent well before the filing of the suit by the landlord. In fact, the suit for eviction was filed by the landlord not on the ground of pending arrears but to penalise the tenant for having defaulted in the past. Such a suit cannot be entertained because once the entire dues are paid to the landlord the cause of action for filing of a suit completely vanished. In fact, the suit for eviction was filed by the landlord not on the ground of pending arrears but to penalise the tenant for having defaulted in the past. Such a suit cannot be entertained because once the entire dues are paid to the landlord the cause of action for filing of a suit completely vanished. Hence, the suit arising out of the Civil Appeal No.1178 of 1984 must be dismissed as being not maintainable and the order of ejectment passed by the High Court is hereby set aside.” 9. A similar situation arose in the decision reported in the case of Sri Rajagopalaswami v. R.BalaKnshnan, (1988)1 L.W. 557, wherein M.N.Chandurkar, C.J. held as under: “There does appear to be an arrangement between the parties to which the landlord never protested by which the tenant was not required to pay the rent every month. Apart from that, what is important in the present case, is that the entire rent has been sent by money order on 212. 1990. The M.O. was refused by the landlord. The eviction petition was filed on 3. 1980, that is, after five days after the rent was remitted. Having regard to the normal course of events, the money order should have been or would have been tendered to the landlord within a couple of days of 22. 1980. In any case, the amount of rent was out of the hands of the tenant and it should, therefore, have been normally received by the landlord before 3. 1980. In Sundaram’s case, A.I.R. 1985 S.C. 582, the Supreme Court has taken the view-that if the landlord has received the entire arrears of rent before the filing of the suit, then there was no cause of action for filing a suit for an eviction on the basis of past conduct of the tenant. The ratio of the decision will equally apply to the facts of the present case, on the footing that the amount having been already sent, the tenant must be taken to have performed his part of the duty”. 10. The ratio of the decision will equally apply to the facts of the present case, on the footing that the amount having been already sent, the tenant must be taken to have performed his part of the duty”. 10. Attention of this Court was also drawn to an earlier decision rendered by Srinivasan, J., in Deluxe Road Lines v. Palani Chetti (1992)2 M.L.J. 481 , wherein His Lordship while considering the facts arising in the abovesaid ease in the light of the provisions contained in Explanation to Scc.l0(2)(i) of the Act held as under: “An unexplained default is undoubtedly wilful. A reading of the main section and proviso makes it clear that it is for the tenant to prove that his default is not wilful. It is only the tenant who knows the relevant facts and he should plead the same and prove them before the Controller in order to satisfy the Controller that the default was not wilful, if the tenant is not able to satisfy the Controller that there were circumstances which prevented him from carrying out his contractual or statutory obligation of having paid the rent, then the necessary consequential inference is that the default is wilful. No doubt, the explanation introduced by the Amending Act of 1973 is to the effect that a default should be construed as wilful if the tenant fails to pay even after issue of two months’ notices by the landlord claiming the rent. But it is not necessary in every case that a notice should have been issued by the landlord the tenant in order to hold that the default is wilful. Even in cases where there was no notice calling upon the tenant to pay the rent, the default could still be held to be wilful”. According to the facts arising in the abovesaid decision, no notice was issued by the landlord. But in the present case, the landlord issued notices to the tenants calling upon them to pay the arrears of rent. Accordingly, the arrears of rent was paid within 15 days from the date of the receipt of the notices. Therefore, this decision will not be applicable to the facts arising in the present case. But in the present case, the landlord issued notices to the tenants calling upon them to pay the arrears of rent. Accordingly, the arrears of rent was paid within 15 days from the date of the receipt of the notices. Therefore, this decision will not be applicable to the facts arising in the present case. Thus, considering the facts arising in the present revisions in the light of the judicial pronouncements cited supta, especially in view of the decision rendered by S.Sundaram v. V.R.Pattabiraman, A.I.R. 1985 S.C. 582, I hold that there is no wilful default in payment of rent committed by the tenants as alleged by the landlord, since the arrears of rent as claimed by the landlord was tendered within 15 days from the date of receipt of the notices issues by the landlord. In the notices issued by the landlord, the landlord stated that the arrears of rent should be paid and the vacant possession should be delivered within 15 clays from the date of receipt of the notices. Accordingly, the arrears of rent was tendered by the tenants within 15 days as stated in the notices issued by the landlord. Hence, it cannot be said that the tenants committed wilful default in payment of rent as contemplated under the provisions contained in Sec.10(2)(1) of the Act read wish the explanation thereunder. Accordingly, 1 hold that the order passed by the Rent Control Appellate Authority in dismissing the petitions filed under Sec.10(2)(1) of the Act in the case of both the tenants are in order. Therefore, I am not inclined to interfere with the same. 11. The next ground that arises for consideration in these revisions is eviction sought for under Sec.14(1)(b) of the Act. According to the landlord, the petition premises is in a dilapidated condition and therefore, he required the same bona fide for demolition and reconstruction under Sec.14(1)(b) of the Act. According to the tenants, the landlord failed to prove the condition of the building. The landlord said that the age of the building is 75 years. It is pointed out that there was no effective cross-examination on this aspect when the landlord was in the witness box. But I consider that, that alone is not sufficient to prove the condition of the building by the landlord. The landlord said that the age of the building is 75 years. It is pointed out that there was no effective cross-examination on this aspect when the landlord was in the witness box. But I consider that, that alone is not sufficient to prove the condition of the building by the landlord. The landlord no doubt produced a sanctioned plan by the Municipality for the purpose of demolishing the existing building and to put up a new super structure. But, there is no evidence on record to show the means of the landlord for the purpose of putting up a new superstructure. The landlord filed Ex.P-6 which is the demand notice issued by the Income Tax Department. That would not be sufficient to show the means of the landlord for putting up the new superstructure. Apart from Ex.P-6 there is no other evidence on record to establish the means of the landlord for the purpose of putting up the superstructure. No Engineer’s report was filed and no Engineer was examined for the purpose of showing the condition of the building. A Commissioner was also not appointed to note down the condition of the building. The Supreme Court in the case of P.Orr and Sons (P) Ltd. Mis. v. M/s.Associated Publishes (Madras; Limned, (1990)2 L. W. 547, while considering the provisions under Sec.14(1)(b) of the Act adumbrated certain criteria for obtaining an order of eviction under Sec.14(1)(b) of the Act. Those ingredients for obtaining order of eviction under Sec.14(1)(b) of the Act where not established in the present case. Considering all these aspects, I am of the view that the proper course would be to set aside the order passed by the authorities below and remit back the petitions for eviction filed under Sec.14(1)(b) of the Act for fresh consideration. Accordingly, I do so. 12. In the result, the order passed by the authorities below under Sec.14(1)(b) of the Act is set aside and the petitions for eviction filed under Sec.14(1)(b) of the Act are remitted back to the file of the Rent Controller with the direction to dispose of this petition in accordance with law on merits after giving proper opportunity of being heard to both the parties. The parties are at liberty to adduce both oral and documentary evidence before the Rent Controller in order to establish their claim in their respective cases. The parties are at liberty to adduce both oral and documentary evidence before the Rent Controller in order to establish their claim in their respective cases. In that view of the matter, the order passed by the Rent Control Appellate Authority under Sec.10(2) (1) of the Act in the case of both the tenants are upheld and the petitions filed under Sec.14(1)(b) of the Act alone are remitted back for fresh disposal. The revisions are allowed to the above extent. There will be no order as to costs. The Rent Controller is directed to dispose of these petitions within three months from the date of receipt of the order of this Court.